CHAPTER TWO

CONCEPTUAL CLARIFICATION, THEORETICAL FRAMEWORK, LITERATURE

REVIEW

2.1 CONCEPTUAL CLARIFICATION

Tort of negligence 1

The Tort of Negligence is a legal wrong that is suffered by someone at the hands of

another who fails to take proper care to avoid what a reasonable person would regard as a

foreseeable risk. In many cases there will be a contractual relationship (express or implied)

between the parties involved, such as that of doctor and patient, employer and employee, bank

and customer, and until relatively recently it was necessary for such a contractual relationship to

exist in order for a claim for negligence to succeed1.

Negligence, in the context of tort law, refers to a failure to exercise reasonable care,

resulting in harm or injury to another person. It is a legal wrong that arises not from intentional

misconduct but from carelessness, recklessness, or omission in fulfilling a duty of care. The

concept of negligence is essential in civil liability cases, as it establishes the legal framework for

holding individuals, professionals, and institutions accountable for harm caused by their failure

to act prudently. In medical practice, negligence occurs when a healthcare provider fails to meet

the standard of care expected in their profession, leading to patient injury, complications, or even

death. This could result from a misdiagnosis, surgical error, improper prescription, lack of

informed consent, or failure to provide timely medical intervention. Unlike intentional harm,

1
Sale Mohammed Op. Cit o. 94.
medical negligence is often unintentional but legally actionable when it results in damage to the

patient.

To establish negligence in a legal claim, the plaintiff must prove four essential elements:

a. Duty of Care – The defendant (medical practitioner) had a legal and professional obligation

to act with reasonable care toward the patient.

b. Breach of Duty – The practitioner failed to uphold the expected standard of care.

c. Causation – The breach directly resulted in harm or injury to the patient.

d. Damages – The patient suffered actual harm, whether physical, emotional, or financial, as a

result of the negligence.

But the civil law relating to negligence has evolved and grown to deal with situations that

arise between two or more parties even where no contract, written or implied, exists between

them. It follows that from a practical and financial point of view every enterprise needs to

ensure that management planning continually takes full account of the responsibilities imposed

and the potential liabilities that may be incurred under what is a continually evolving part of the

law.

The case often quoted as the foundation for the current law is that of Donoghue v

Stevenson (1932) AC 5622. It was held that, despite no contract, express or implied, an action for

negligence could succeed. The claimant successfully argued that she was entitled to a duty of

care even though the deficient goods (a bottle of ginger beer with a snail in it) were bought, not

by herself, but by a friend, so that no contract existed between the manufacturer and the person

suffering the damage.

2
(1955) 2 N.L.R. 63.
 From this case has evolved the principle that we each have a duty of care to our

neighbour, or someone we could reasonably expect to be affected by our acts or omissions. This

Duty of Care is the first element which must be established if a claim is to succeed. It will be

appreciated that such a duty of care could be held to apply very widely and so case law has made

it more difficult to establish that such a duty exists. In Anns v Merton London Borough Council

(1978) AC 7283 a two stage test was used to establish if there was a sufficient relationship of

proximity based upon foreseeability and, if there was, were there reasons why there should not

be a duty of care. Later, in Caparo Industries plc v Dickman (1990), 2 AC 605, a three fold test

was used to determine if a duty of care existed.

The test required that:

 Harm must be a reasonably foreseeable result of the defendant’s conduct

 A relationship of proximity must exist

 It must be fair just and reasonable to impose liability

The second element required is to establish that there has actually been a breach of the

duty of care. In any action, the court will consider the standard of care that a reasonable person

would have taken. If the defendant failed to meet that standard the court will then consider if, in

the actual circumstances of the case, the standard needs to be adjusted for any reason.

Reasons for adjustment include:-

Professional standards which a reasonable professional may be expected to follow, in

which case those standards may be used.

3
(1969) 1 Q.B. 528.
Common practice or industry guidelines, in which case those standards may be used unless it is

considered that the common practice itself is considered negligent.

i. If it was reasonable to expect more than usual care because of a disability or frailty of the

plaintiff compared to a fit or healthy person.

ii. If there was a high degree of risk in the defendant’s action then the court would expect

that extra precautions were taken.

iii. If, for practical reasons, reasonable precautions could not be taken, or they would have

been too expensive, the court may decide the defendant had still met the duty of care.

iv. If there was a social benefit to the defendant’s action the court may decide they had not

breached their duty of care.

Element three that must be established is to show that the plaintiff has suffered loss or damage as

a direct consequence of the defendant’s breach of his duty of care. In essence, all he has to prove

is that if it had not been for the actions of the defendant, he would not have suffered loss or

damage.

2.1.2 Negligence

Negligence is a fundamental principle in tort law, referring to a breach of duty that results

in harm or injury due to the failure to exercise reasonable care. Unlike intentional torts that

involve deliberate wrongdoing, negligence arises from carelessness, recklessness, or failure to

meet the standard of conduct expected in a particular situation. The concept of negligence is

rooted in the duty of individuals, particularly professionals, to act with due diligence to prevent

foreseeable harm. This duty is especially critical in professions like medicine, where
practitioners are entrusted with human lives and are expected to adhere to high standards of care.

The legal doctrine of negligence has evolved over centuries, shaped by judicial decisions and

statutory enactments. Traditionally, negligence required proof of four essential elements: duty of

care, breach of duty, causation, and damages. Courts assess whether a defendant owed a duty to

the plaintiff, whether that duty was breached, whether the breach directly caused harm, and

whether the plaintiff suffered actual damages4. In the medical context, these principles guide

legal proceedings in cases where patients allege harm due to substandard care. The law

recognizes that not all unfavorable medical outcomes amount to negligence; rather, liability

arises when a healthcare provider’s actions deviate from what a competent professional would

have done under similar circumstances.

Medical negligence specifically refers to a situation where a healthcare provider, such as

a doctor, nurse, or hospital, fails to provide treatment in accordance with established medical

standards, resulting in injury or harm to a patient. This could involve misdiagnosis, surgical

errors, medication mistakes, failure to obtain informed consent, or inadequate post-treatment

care. The determination of negligence in medical practice often relies on expert testimony to

establish the expected standard of care and whether the defendant’s actions fell below that

standard. In many legal systems, medical negligence claims are evaluated using the "reasonable

person" standard, which compares the defendant’s conduct to that of a similarly qualified

professional under the same circumstances.

The increasing recognition of patient rights has significantly influenced the legal

framework governing negligence. Historically, patients had limited recourse when harmed by

medical professionals, but modern legal systems have developed robust mechanisms for holding
4
Crawford Morris, R. and Allan Moritz R. Op. Cit P. 338.
practitioners accountable. Laws governing negligence serve not only to provide compensation

for affected individuals but also to uphold medical ethics, deter substandard care, and promote

adherence to professional standards. Courts and regulatory bodies continually refine negligence

doctrines to reflect advancements in medical science, patient expectations, and evolving ethical

considerations in healthcare delivery.

2.1.3 The nature of negligence

According to Alderson B., in Blyth v. Birmingham Water Works Company Co. (1856) 5

"Negligence is the omission to do something which a reasonable man, guided upon those

considerations which ordinarily regulate the conduct of human affairs, would do, or doing

something which a prudent and reasonable man would do, or doing something which a prudent

and reasonable man would not do." Simply put therefore, "negligence is the breach of a legal

duty to take care which results in damage, desired by the defendant to the plaintiff."2 Negligence

in medical practice ordinarily implies that the medical practitioner had the consent of his patient

to treat him, but such treatment did not conform with the standards imposed on the medical

practitioner by law.

The courts generally regard the relationship between patients and medical practitioners as

contractual6. When a patient presents himself to a medical practitioner for medical care, and the

medical practitioner proceeds to render that care, the law implies that a contract has arisen

between the parties. It is from this contractual relationship that the duty of the medical

practitioner to his patient arises. In medical professional liability litigation, the trend has been for

5
(1856) 11 EX. 781,784
6
Winfield & Jolowicz on Torts, by W.V.H. Rogers, Sweet and Maxwell London, 1975 P.5.
the patient to bring suit against the physician for alleged failure to use reasonable care and that

action is usually in tort. According to Halsbury's Law of England,7

A person who holds himself out as ready to give medical advice or

treatment impliedly undertakes that he is possessed of skill and knowledge
for the purpose. Such a person, whether he is a registered practitioner or
not who does a patient, consult, owes him certain duties, namely, a duty of
care in deciding what treatment to give and a duty of care in the
administration of that treatment. The practitioner must bring to his task a
reasonable degree of care. Neither the very highest, nor very low degree of
care and competence judged, in the light of the particular circumstances of
each case is what the law requires; a person is not, liable in negligence
because someone else of greater skill and knowledge would have
prescribed different way not is he guilty of negligence if he has acted in
accordance with a practice accepted as proper by a reasonable body of
medical men skilled in that particular art, although a body of adverse
opinion also existed among medical men.

The quotation above is a precise epitome of the essentials of the negligence of medical

practitioners. This is a clear indication that a practitioner stands the risk of paying compensation

at any time he acts below the standard required of a competent practitioner of his class,

experience and circumstance.8

Consequently, if a medical practitioner holds out himself as a good surgeon, he must measure up

to the standard generally approved or acceptable in the field of surgery (not a specialist in a

particular area of medicine), then he is accordingly expected to measure up to the generally

acceptable standard for general practitioners 9. Therefore, the standard is not constant; it is

dynamic and changes in accordance with the area of specialization of each doctor. Differences in

circumstances and facilities at the place of work may also affect the standard required in each
7
R. Crawford Morris and Alan R. Moritz, Doctor and patient and the Law, Fifth Edition C.V. Mosby Co., Saint Louis,
1971. P. 326.
8
3rd Edition (Simond's Edition) Vol. 26, article 22 at P. 17, quoted by sale Mohammed in the Tort of Negligence
Under Nigerian Law, Unpublished LL.M. Thesis 1996, Faculty of Law, Ahmadu Bello University Zaria Nigeria, P. 146.
9
Umerah B.C, Medical Practice and The Law in Nigeria, Longman, Nigeria, 1989, P. 124.
case. Thus, more efficient medical services may be expected in a modern well-equipped hospital

than a village medical center.

2.1.4 Proof of negligence

The quantum of proof in civil action is a preponderance of probability. The plaintiff has

to adduce evidence to show that the medical practitioner was negligent. Generally, in medical

malpractice cases, it may be difficult for the patient plaintiff to prove negligence because he may

not know what happened. In view of this difficulty of direct proof of fault and of the causal

nexus between the fault and injury, the court may allow the plaintiff to rely on the doctrine of

Res Isa Loquitur10. Literally, this maxim means, "The event speaks for itself". In its inception,

Res Ipsa Loquitur was nothing but a reasonable conclusion from the circumstances of an

accident that, the accident was probably due to the defendant's fault.

There are further requirements which must be supplied for the rule of respsa loquitur to

apply, that, the plaintiff must prove not only that;

(1) the event is of the kind that ordinarily does not occur in the absence of someone's

negligence, but also that it was caused by an agency or instrumentality within the exclusive

control of the defendant. This is illustrated by the case of Scot. v. The London St Katherine Dock

Co.12, where bags of sugar fell on the plaintiff, while he was lawfully passing the doorway of

the defendant's warehouse. The defendants called no evidence. Erie C.J. said:

There must be reasonable evidence of negligence, but where the thing is shown to
be under the management of the defendant or his servant and the accident is such
that in the ordinary course of things does not happened if those who have the
management use proper care, it affords reasonable evidence in the absence of
explanation by the defendants, that the accident arose from want of care.

10
Saleh Mohammed [Link]. P.65
(2) The second requirement is that the accident was not due to any voluntary action or

contribution on the part of the part of the plaintiff. The effect of the last condition is that it may

create some problems because the plaintiff is normally unconscious and does not know what he

or the defendant happens to be doing. His natural bodily reaction or condition, which may have

contributed to the final harm, is certainly neither willful nor controllable or observable by

himself in most cases and yet can absolve the medical practitioner from responsibility. It is

therefore recommended that, the last condition should be abrogated.

2.1.5 Elements and instances of negligence

Negligence in medical practice refers to situations where a medical practitioner, despite

having obtained the patient's consent for treatment, fails to exercise the degree of care and skill

required by law11. This failure occurs when the healthcare provider does not adhere to the

accepted medical standards, leading to harm or injury to the patient. In medical negligence cases,

the focus is on whether the practitioner acted in a manner consistent with what a reasonably

competent professional in the same field would have done under similar circumstances. Medical

negligence can manifest in various forms, including misdiagnosis, improper treatment, surgical

errors, medication mistakes, or failure to obtain informed consent. For instance, if a doctor

prescribes the wrong medication due to carelessness, leading to adverse effects on the patient, it

could be considered negligent. Similarly, if a surgeon operates on the wrong body part due to

miscommunication or lack of proper verification, this constitutes a serious breach of medical

standards.

11
(1865), 3 H & C, 596
 The legal framework governing medical negligence typically requires the establishment

of four essential elements: duty of care, breach of duty, causation, and damages. First, the

medical practitioner must have owed a duty of care to the patient, meaning that a doctor-patient

relationship existed. Second, there must be evidence that the practitioner breached this duty by

failing to act according to established medical standards. Third, the breach must have directly

caused harm or injury to the patient. Lastly, the patient must have suffered actual damages,

whether physical, emotional, or financial, as a result of the negligence. In many jurisdictions,

medical negligence cases are adjudicated based on expert testimonies, where medical

professionals assess whether the accused practitioner’s actions deviated from standard practice.

The law also considers whether the harm caused was foreseeable and preventable with

reasonable medical care. If proven, the practitioner may be held liable for malpractice, resulting

in legal consequences such as compensation for the patient, professional sanctions, or even

revocation of the practitioner’s medical license. The principle behind medical negligence laws is

to ensure that patients receive competent and ethical medical care. It serves as a safeguard

against reckless or substandard medical practices while holding practitioners accountable for

lapses that compromise patient safety. By maintaining high standards of professionalism, the

medical field aims to minimize instances of negligence and uphold public trust in healthcare

services.

Negligence in medical practice ordinarily implies that the medical practitioner had the

consent of his patient to treat him, but such treatment did not conform with the standards

imposed on the medical practitioner by law.

An action in negligence involves three basic elements:

(1) The nature of the duty that the law imposes on the medical practitioner

Medical practitioners are entrusted with a fundamental duty to preserve life, alleviate

suffering, and promote patient well-being. This duty is both ethical and legal, requiring

adherence to professional standards of care in diagnosing, treating, and managing patients. At the

core of this responsibility is the duty of care, which arises once a doctor-patient relationship is

established. This duty obligates healthcare providers to act in a manner that prioritizes patient

safety and well-being, applying their knowledge, skills, and experience consistently with what is

expected of a reasonably competent professional in the same field. Any deviation from this

standard, whether through action or inaction, can result in legal liability if it leads to patient

harm. Additionally, medical practitioners are legally required to exercise reasonable skill and

competence, ensuring they possess the necessary education, training, and expertise to perform

their duties effectively. A failure to meet this standard whether due to inadequate knowledge,

improper technique, or carelessness may constitute negligence, with courts often relying on

expert testimony to assess whether the practitioner’s actions fell below the required level of

competence.

(2) The alleged conduct that constitutes the breach of that duty in the eyes of the law

A breach of duty in medical practice occurs when a healthcare provider fails to uphold

the legally required standard of care, leading to patient harm or injury. The law evaluates such

breaches by comparing the medical professional’s actions or omissions to what a reasonably

competent practitioner would have done in similar circumstances. Misdiagnosis or delayed

diagnosis is a common example, as it can result in inappropriate treatment or lack of necessary

intervention, worsening the patient’s condition. Similarly, errors in treatment and medication,
such as prescribing the wrong drug, administering incorrect dosages, or failing to monitor a

patient’s reaction, constitute breaches of duty. Surgical errors, including operating on the wrong

body part, performing unnecessary procedures without medical justification, or failing to follow

sterilization protocols, represent severe instances of medical negligence. These errors often result

in irreversible harm, legal liability, and professional sanctions against the responsible

practitioners.

Medical confidentiality and proper documentation are also fundamental duties in

healthcare practice. Healthcare providers must maintain strict patient confidentiality, ensuring

that medical records and personal health information are protected from unauthorized access or

disclosure. Breaching confidentiality, such as revealing a patient’s condition without consent,

can result in legal claims for invasion of privacy. Additionally, maintaining accurate and up-to-

date medical records is crucial for ensuring continuity of care. Failure to document critical

patient information—such as allergies, diagnoses, medications, or treatment history can lead to

misdiagnosis, incorrect medication administration, and other serious medical errors. If

negligence in record-keeping results in patient harm or death, medical professionals and

institutions may be held legally accountable for failing to fulfill their professional obligations.

(3) The causal relationship between the breach of duty and the injuries of which the victim

complains.

In medical negligence cases, establishing a direct causal link between the breach of duty

by a medical practitioner and the injuries sustained by the patient is a fundamental requirement

for legal liability. This principle, known as causation, ensures that a medical professional is only

held accountable if their negligent act or omission directly resulted in harm. The law generally
requires proof that, but for the practitioner’s negligence, the injury or damage would not have

occurred. This means that the patient must demonstrate that their suffering was a direct

consequence of the healthcare provider’s failure to adhere to the required standard of care.

Causation in medical negligence cases is often analyzed using two key tests: factual

causation and legal causation (proximate cause). Factual causation is typically determined using

the “but-for” test, which asks whether the harm would have occurred but for the medical

practitioner’s negligence. For example, if a surgeon leaves a surgical instrument inside a patient,

leading to an infection that causes further complications, it must be proven that the infection

resulted specifically from this error rather than from another underlying condition. Legal

causation, on the other hand, focuses on whether the injury was a foreseeable consequence of the

breach. If the harm suffered by the patient was a reasonably predictable outcome of the medical

practitioner’s negligence, legal causation is established. Without clear evidence of causation, a

negligence claim may be dismissed, even if a breach of duty is evident. Therefore, causation

serves as a critical element in determining liability and ensuring that medical professionals are

held accountable only when their actions have directly contributed to patient harm.

[Link] Instances of Negligence

If a medical practitioner performs treatment to a patient in a way or manner, which is

negligent, and thereby causing harm to the patient, the patient may institute an action against

such a doctor to recover damages for harm suffered. Liability for negligence can only arise

where there is a legal duty to take care either in contract or in tort 12. This implies that for the

plaintiff to succeed. in his case, he must prove that the doctor was negligent and this onus stands

discharged if he can show that: (a) the doctor owed him a duty to use reasonable care in treating

12
Crawford Morris R. and Alan Moritz R, Op. Cit. P. 326.
him; (b) that the doctor had failed to exercise such care, that is to say that he was in breach of

that duty and; that the had suffered damage or injury as a result of the breach 13. He needs not

show that there was agreement between him and the doctor to avoid causing damage or harm

before succeeding in his case. Authority for this proposition is the case or R. v. Bateman 14. In that

case, the appellant a panel doctor practicing in one town called Deptford, was convicted of

manslaughter of a patient call Mary Ann Harding and was sentenced to six months imprisonment

by the trial court for criminal negligence. He had actually been called in to attend to the patient

on her confinement. After finding that her case was a difficult one, he first attempted

unsuccessfully to make her deliver by the use of instruments, after administering Chloroform; he

then tried perform manual operation called "version", after an hour the child was born dead. Five

days after the delivery of the child the patient was then very seriously sick and was removed to

the infirmary, where she died two days after. The charges preferred against him and for which he

was convicted were: (a) that in the performing of "version" he had occasioned an internal

rupture; (b) that with the placenta he had removed part of the uterus and; (c) that he had unduly

delayed in sending the patient to the infirmary.

On appeal, his conviction for criminal negligence was quashed and was instead convicted

for civil negligence. The court, then observed with regards to civil liabilities of doctors as

follows.

If a person holds himself out as possessing special skill and knowledge, and he is
consulted as possessing such skill and knowledge by, or on behalf of a patient to
use due caution in undertaking the treatment. If he accepts the responsibility and

13
Charlesworth On Negligence 6th Edition, Sweet and Maxwell, Londor 19, P. 578-580. 15. Seem the case of
Okeowo v. Chief E.O. Sanyaolu, (1972) IAN.L.R.14
14
R.V. Bateman (1925) 94 L.J. K.B. 791
 undertakes the treatment and the patient submits to his direction and treatment
accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill
and caution administering the treatment. No contractual relation is necessary, nor
is it necessary that the service be rendered for reward15.

Going by the above quotation, it becomes obvious that no contractual relation is

necessary, nor is it a requirement that the service be rendered for reward. This means that the

plaintiff in a malpractice suit needs not prove the existence of a contract or that the service was

rendered in expectation of a certain reward promised before he can succeed. The reason for not

making contract a condition for doctor's liability in negligence is not unconnected with the fact

that there are two ways in which a doctor may be held liable to his patient; one is through

contract and the other is through tort. This means that if there is an agreement between him and

the patient as to how to go about with the treatment, his liability may be based on breach of that

contract. But where there is no contract, the liability will be in tort. Therefore, here, the criterion

it has been submitted is that since he is engaged in a kind of work that involves endangering

some one's life, he is then automatically under a duty of care not to do anything that will cause

someone, his life16.

There are many instances of civil liability or liability in negligence of medical

practitioners. Some of the instances, which we are going to consider here are; improper

diagnosis, treatment, drugs, x-ray injuries, anesthesia surgery, blood transfusion and

abandonment.

Improper Diagnosis

15
See Saleh Mohammed [Link]. P. 68 see also the case of Pippin v.
16
Sheppard (1822) Prince. See also Charles worth Op. Cit. P. 579.
 The mere fact that a physician has made an error in diagnosis is not enough, by itself to

support a claim that he was negligent. A physician has a duty to use ordinary care and skill

necessary to acquire all available data essential to a proper diagnosis. The patient is entitled to a

careful examination as his condition and the circumstances will permit, with the exercise of such

diligence and the application of such methods of diagnosis for discovering the nature of the

ailment as are usually utilized by medical men of ordinary judgment and skill in that community

or in similar localities17. First case, which relates to improper diagnosis, is the case of Pundey v.

Union - Castle Mail S.S. Co. Ltd & Anor 18. In that case, the plaintiff, a member of crew of the

first defendants' steamship called Llaustephan Castle fell sick, complaining rheumatism while

they were on voyage from London to the east coast of Africa, via Cape Town. He was then

examined by the ship's doctor, the second defendant, who prescribed treatment for him and also

recommended that he be repatriated. The plaintiffs health further deteriorated. He was again

examined by a specialist who discovered that the plaintiff was suffering from acute arthritis. The

plaintiff them brought an action against the first and second defendants claiming damages on the

grounds that the second defendant was negligent in his diagnosis and treatment. Evidence of a

similar symptom of rheumatism by other doctors who examined him before his repatriation was

however adduced.

Where the facts and circumstances of a case show that there was an unequivocal instance

of poor diagnosis, the courts are always ready to yield to the deserving cases. Thus, In Fortner v.

Koch19, the plaintiff came to the defendant physician with a swelling on his knee and additional

symptoms that might lead a physician to suspect a variety of conditions. The physician examined

17
See Crawford Morris, R. and Alan Moritz R. Op. Cit. P. 332.
18
(1953) 1 Lloyds Rep. 73.
19
272 Mich. 273, 261 N.W. 762 (1935).
the patient manually, placed him on a diet, and injected a solution into his bloodstream. Severe

injuries followed. It was shown at the trial that the usual practice among physicians in the

community under these circumstances was not only to take the history of the patient but also to

make an x-ray study, a blood test an a biopsy. These were not considered alternate tests. All of

them were required. The defendant was held guilty of negligence for failing to make these

diagnostic tests.

Improper Treatment

A medical practitioner is neither a guarantor not an insurer of good result of a cure. The

art and science of medicine, being what they are, there will always be poor results from treatment

despite the fact that the highest degree of care is given. Thus, the poor result is not usually

evidence in itself of negligence on the part of the medical practitioner. These principles were

applied in the following cases. In Camon v. U.S23, civilian was on, in an Army hospital for

varicose veins. An infection followed the operation and developed into a phagedenic ulcer, a rare

and serious disease. It was held that the physician and the United States were liable for

negligence. In yet anothe case, Chin Keow v. Government of Malaysia20, a doctor administered

an injection of procaine penicillin to a woman as a result of which she died within an hour. Her

mother sued in negligence alleging that the doctor had failed to inquire conduct any test to

ascertain whether the woman was allergic to penicillin or not before injecting her with it. And

that if he had conducted the test or made the inquiry, he would have found out that the woman

had previously reacted badly to penicillin as a result of which her out patient card was endorsed

with the warning Allergic to penicillin".

20
317 Mich. Ww5, 26 N.W. 2d. 755 (1947).
 The trial judge then held that the defendant was liable in negligence for failing to make

the inquiry or conduct the tests. On appeal to the Federal Court of Malaysia, the finding of

negligence was rejected. On further appeal to the Privy Council, however, the decision of the

trial court was restored. The Privy Council while disagreeing with the Federal Court of

Malaysia's view that evidence should have been brought from a medical witness of the highest

professional standing or that the evidence presented should have been supported by references to

the writing of distinguished medical men, said, 'the test is the standard of the ordinary competent

practitioner exercising ordinary professional skill, and on this the evidence was all one way.

A dependant of the deceased sued the defendant under the Fatal Accident's Act 1961,

claiming damages for the death, which the dependants attributed to the negligence of the

defendant. The particulars of the negligence were: (1) that there was gross negligence in the

actual performance of the operation which was said to have lasted for about three and half hours

and that there were incisions; (2) the defendant refused to attend to the deceased after the

operation because he did not come into the hospital as the defendant's private patient; and, (3)

that the deceased was overdosed with chloroform thereby, setting on chloroform poisoning.

On the first allegation, the court found that the operation actually lasted for about one hour only

and that only one incision was made.

The court also held that although the administration of the first enema was a negligent act, it was

not the doctor that ordered it and thus, cannot be held liable for its consequences and that in any

event the enema and gas were later discharged. On the question of neglect raised in ground two

the court found that it was not true and in addition there was the fact that there were only two

doctors attached to the General Hospital, which was far inadequate.

 On the allegation of poisoning through over-dosed chloroform the court found that even

though there was medical evidence that the symptoms before death were consistent with delayed

chloroform poisoning, the witness was not categorical on this because no postmortem

examination was conducted in order to ascertain whether or not it was the actual cause of death.

It was finally decided that the plaintiff had failed to prove his allegations, where upon, his claims

failed as well.

Improper Administration of Drugs

As every physician, pharmacologist and nurse or ward servant know, the use of drugs

always involves at least some remote possibility of unfavourable reaction of hypersensitivity.

Not only may a patient's intrinsic allergy to the drug cause a reaction, there is also the possibility

that the amount of the dosage, the mode of administration or even the speed of injection can

cause an unfortunate reaction. Although, a great number of these types of reactions are

unpredictable, there are occasions when a physician, through proper medical practice,

particularly, in reviewing the past history of the use of the drug can predict (foresee) the reaction

to a particular drug21.

In the Nigerian Supreme Court decision of University of Nigeria Teaching Hospital

Management Board and others v. Hope Nnoli22, Hope Nnoli, working with the U.N.T.H, was the

only qualified chemist in the compounding unit for her employer at all times material to this

case. An unqualified pupil pharmacist named Mr. Nwuzor, who was then undergoing his

internship with the hospital, was posted to her unit. Being on internship, Mr. Nwuzor was not

21
See Edward v. Mallan (1908) I K. B. 1002.
22
Dr Abdulmumini Hassan Rafindadi, "Challenges for the Expert Medical Witness" contained in Health Care
Delivery and the law in Nigeria, Proceedings of a Seminar on Continuing Medical Education Programme A.B.U.T.H.
Zaria, December, 1977,P.49.
supposed to compound medicine on his own without supervision. On 20th February 23, Mr.

Nwuzor allegedly compounded chloroquine syrup, which caused the death of children aged

between one, and four years who took it. Postmortem examination confirmed the cause of death.

Analysis of the syrup by the central Drug Control Unit of the Federal Ministry of Health revealed

that the said chloroquine syrup contained about eight times more chloroquine phosphate than a

normal dose. Such overdose, it was deciphered, is dangerous and liable to result in deaths of

children between one and four year. Sequel to the deaths of the children, there was a public

outcry and the Management Board of Teaching Hospital conduced an investigation to ascertain

the person or persons involved or responsible for the overdose. And it was accordingly Nnoli and

Mr. Nwuzor who were found liable in negligence.

X-Ray Injuries

The use of x-ray has for longtime been a cause of multiple professional liability claims.

Radiologists are more likely to be involved in this kind of personal injury actions than are many

other medical specialist. Most of the complaints here involve therapeutic uses of x-ray, allegedly

resulting in burns, fibrosis of internal organs, sterility or prenatal injuries. There are also

numerous cases that involve a claim of insufficient diagnosis, the physician failed to use the x-

ray as a diagnostic aid and thus, failed to learn of a fracture or other condition 24. The most typical

of the cases here, is Farrara v. Gallucio25. The plaintiff, suffering from bursitis in her right

shoulder, received series of x-ray treatments from the defendant radiologists. During the

treatment, she experienced nausea. Subsequent to the seventh treatment, her shoulder began to

23
Ibid PP. 96-97

24
Lock v. Scantlebur, the Times, July, 25th, 1963.
25
(1955) 2 N.L.R. 63.
itch, the skin turned red, blisters formed and then ruptured and the skin peeled, leaving the raw

flesh of the shoulder exposed. Scabs formed and lasted for several months. One scab lasted for

several years. Her condition was diagnosed as chronic radic dermatitis caused by x-ray therapy.

A judgment of £25,000 against the physian was affirmed. Of this verdict, $15,000 was for mental

anguish that the plaintiff suffered as a result of her fear of developing cancer from the burns

("Cancerphobia"), a dermatologist having allegedly told her that such cancer might develop.

It has been found from interview with medical practitioners that injuries arising from x-

ray therapy are common in Nigeria, but because of ignorance and illiteracy, victims hardly notice

the injuries and even when they do they hardly have the means to consult specialists to ascertain

the cause. Awareness programmes are therefore recommended in order to educate potential

patients of x-ray therapy on their rights.

Anaesthesia

The administration of anesthesia is one of the sources of litigation in medical civil

negligence. It could be claimed that a particular anesthetic agent was given in excessive dosages,

either because of the patience low tolerance or because of a failure to recognize complications

demanding reduction of the dose. Disregard of sensitivity to the anesthetic is often claimed as a

source of damages. There are very many cases alleging complete paralysis following the use of a

spinal anesthetic. Also, errors in the use of anesthetic gas machines have been involved in cases

of asphyxiation. The breaking of the needle used to inject anesthetic has given rise to claims, as

have injuries to the teeth and mouth following inhalation of anaesthetics26.

26
Cler & Lindsell, Clerk and Lindsell On Torts, Sweet & Maxwell, London, 1982, Para, 913. [Link] Morris R.
and Alan Moritz v.
 Inherent in the anesthetic situation is the dreaded "cardiac arrest", where in the medical

practitioners are confronted with the tragic dilemma of the so-called 4 to 7 minute "eternity,"

within which to attempt to resuscitate the patient 27. If such attempts bring back the body but not

the mind (i.e. permanent brain damage from cerebral hypoxia and/or anoxia), the expense

involved in keeping and in maintaining such a person will be too enormous to bear. In a situation

of this kind, and malpractice suit against a Medical Practitioner may run into very large figures 28.

Surgery

Surgery is a very difficult area of medical practice. It is undoubtedly the one single

greatest source of professional liability suits. Surgical problems may arise, among other ways,

from the diagnosis of the referring physician or from the diagnosis of the surgeon. Generally, the

surgeon is not expected to make an independent diagnosis. The requirement of ordinary care is

fulfilled by his accepting the diagnosis of the referring physician. Assuming that the latter is a

physician of good reputation and that there is nothing apparent about the patient's condition to

suggest the likelihood of an erroneous diagnosis. Surgical mishaps may arise from the

inadvertent cutting or tearing of tissues. However, such accidents do not necessarily indicate

negligence on the part of the surge since the cutting or tearing may have been the result of

anatomic distortions, either natural or brought about by disease or prior surgery. The medical

practitioner in the exercise of due care will not necessarily be aware of such anatomic distortions

in time to avoid inadvertent cutting sometimes, the damage resulting from such cutting or tearing

is recognizable at once and at other times, it may not appear for a period of years 29.

27
(1939) 2K. B. 14.
28
op cit. P. 334. 32. Ibid.
29
Ibid.
 Leaving foreign bodies in the patient, such as sponges, gauze, needles, instruments and

swabs, gives rise to the a considerable number of claims. In such cases, the courts apply the

doctrine of Res Ipsa Loquitur, under which negligence can be proved by circumstantial evidence.

Thus, in Hoking v. Bell30 a surgeon was held liable in negligence for leaving a ward of surgical

gauze in a patient's body after an operation and for leaving a portion of drainage tube in the site

of an operation.

Surgical mishap is a common phenomenon of medical negligence in Nigeria, leading to

numerous surgical deaths. Investigation from questionnaires has revealed that a wide range of

problems, including poor or absent documentation, deficiencies in essential services, surgeons

operating outside their specialty and the use of poorly trained and supervised locum are causes of

surgical deaths. It is, therefore, recommended that hospital managements, should improve on the

available surgical facilities, obtain modern surgical instruments, employ well trained staff and

specialists and re-train them periodically, in order to enhance efficiency and minimized the rate

of surgical mishaps.

Blood Transfusion

Claims in negligence for medical liability in blood transfusion arise in several different

ways. One type of such claims arises from the use of mismatched blood. This can be caused

either by laboratory errors in cross-matching or by clerical errors whereby blood intended for one

patient, is given to another. Administration of mismatched blood can produce a variety of

injuries, including shock, serious kidney damage and even sudden death. Blood transfusions

have also been responsible for serious infections being transmitted, such as, Acquired Immune

Deficiency Syndrome (A.I.D.S), Veneral diseases, jaundice hepatitis, etc. In the United States of

30
Maclein v. Smith, 129 Colo. 72 266 P. 2d, 1095 (1954).
America, suits involving transfusions are move frequently filed against a hospital than a

physician. Thus, in Necolayff v. Genesee Hospital31, the plaintiff was recovering from a surgical

operation. An intern and a nurse entered her room and told her that she was to have a blood

transfusion from her daughter. Although she protested, informing them that she had no daughter,

they nevertheless administered the transfusion. As a result she became seriously ill and

temporarily insane. Actually, the transfusion had been intended for another patient. The court

held the hospital responsible for the negligence of the intern and the nurse.

Abandonment

Where medical practitioners abandon their patients, that is, neglect them in the course of

treatment; they may be liable in negligence. Thus in the case of Barnett v. Charlsea And

Kensington Hospital Management Committee a casualty officer of a hospital was held to have

been negligent in refusing to see a patient who had presented himself at the casualty Department

complaining of Vomiting but had referred him to his own doctor. The can was in fact suffering

from Arsenical poisoning. Similarly in Dickson Igbokwe v. U.C.H. Board Management 32, the

deceased was admitted to a 4th floor of the UCH. Where she gave birth in December 1958. She

was suspected of being mentally deranged and was placed on sedatives. The following day, she

was missing from her bed and was found dead on the ground 70 feet below. The husband sued

the U.C.H. Board for neglect. The U.C.H. authority agreed that if someone had been assigned to

look after her, the unfortunate event may not have happened. The plaintiffs action was upheld

and a sum of two hundred and fifty pounds was awarded as damages to the woman's children.

31
See Unurah B.C. Op. Cit. at P. 122.
32
(1969) 1 Q.B. 528.
The husband was excluded from benefiting because he could not show evidence that he had done

native marriage with the deceased.

2.2 Theoretical Framework

A theoretical framework provides the foundation upon which a study is built. It offers the lens

through which the researcher interprets data, contextualizes findings, and explains the

phenomena under investigation. For this study, two relevant theories underpin the analysis of

tortious liability in the medical profession: the Duty of Care Theory and the Corrective Justice

Theory.

2.2.1 Duty of Care Theory

The Duty of Care Theory, rooted in the broader scope of negligence law, is central to

understanding tortious liability in medical practice. This theory posits that individuals—

particularly professionals like medical practitioners—owe others a legal obligation to act with a

certain standard of care. The origin of this concept is found in the landmark case of Donoghue v.

Stevenson (1932), where Lord Atkin introduced the "neighbour principle"—that one must take

reasonable care to avoid acts or omissions that can foreseeably harm others.

In the medical context, once a doctor-patient relationship is established, the practitioner is

expected to deliver care that aligns with the competence of a reasonably skilled professional in

similar circumstances. Failure to meet this standard constitutes a breach of duty, giving rise to

liability if harm ensues. This theory helps frame the liability of medical practitioners in

negligence, misdiagnosis, surgical errors, and failure to obtain informed consent.

2.2.2 Corrective Justice Theory

The Corrective Justice Theory, advanced by legal philosophers such as Aristotle and later

developed by Ernest Weinrib, views tort law as a mechanism for rectifying the imbalance caused

when one party wrongfully harms another. It is based on the moral imperative to restore the

injured party to the position they were in before the harm occurred.

Under this theory, tortious liability is not merely about deterrence or punishment but about

fairness and restoration. In the case of medical malpractice, when a doctor’s action or omission

causes injury to a patient, the principle of corrective justice demands that the doctor (or their

insurer) compensate the victim. This theory supports the compensatory nature of tort law, where

damages awarded are meant to restore the patient and ensure justice is done.

Relevance of Theories to the Study

Both theories are directly relevant to this research. The Duty of Care Theory provides the

standard for assessing whether a medical practitioner acted negligently, while the Corrective

Justice Theory justifies the legal remedy provided to victims of malpractice. Together, they frame

the legal reasoning and judicial attitudes behind decisions in tortious claims against medical

professionals in Nigeria. These theories are also crucial in evaluating the effectiveness of

existing legal and institutional mechanisms. They allow for a normative assessment of how

Nigerian tort law balances the rights of patients with the professional discretion of healthcare

providers.
2.3 Literature Review

Several scholars and legal commentators have explored the nature, scope, and enforcement

challenges of tortious liability within the Nigerian healthcare system and beyond.

2.3.1 Domestic Literature

A number of Nigerian scholars have examined the issue of tortious liability in the medical

profession from different perspectives, shedding light on its legal, institutional, and cultural

dimensions.

Ezejiofor (2005) provided one of the earliest comprehensive critiques of Nigeria’s legal and

institutional preparedness for addressing medical malpractice through tortious liability. He noted

that the general public in Nigeria lacks adequate awareness of their rights as patients, a gap that

severely limits the number of claims brought against medical professionals, even in instances of

evident negligence. According to Ezejiofor, this lack of awareness is further compounded by the

inaccessibility of legal services and the complexity of the legal system. He recommended that

patient education should be prioritized by both governmental and non-governmental institutions.

Furthermore, he advocated for the modernization of Nigeria’s tort system to ensure it can

adequately handle malpractice claims and serve as a deterrent against professional misconduct in

the medical field.

Iwuji (2013) explored the sociocultural and economic obstacles that impede the effectiveness of

tort law in curbing medical negligence in Nigeria. He highlighted that many patients refrain from

pursuing legal action due to cultural stigmas associated with suing healthcare providers,

especially in rural and closely-knit communities. Additionally, the high cost of litigation and the
lengthy nature of judicial proceedings serve as major deterrents. Iwuji criticized the weak

enforcement mechanisms within regulatory bodies such as the Medical and Dental Council of

Nigeria (MDCN) and called for sweeping reforms. These include not only legislative

amendments to streamline tort claims but also judicial activism to interpret laws more favorably

in the interest of medical victims.

Nwafor (2017) provided a more optimistic outlook, observing a gradual increase in public

awareness concerning medical rights and legal remedies. However, he lamented the inconsistent

standards applied by Nigerian courts in adjudicating cases of medical negligence. According to

him, the absence of clearly defined statutory standards often results in reliance on outdated

common law principles, leading to unpredictability in judicial outcomes. Nwafor emphasized the

need for regulatory bodies like the MDCN to strengthen their oversight functions and ensure that

erring professionals are held accountable not only through internal disciplinary measures but also

through referral to civil courts when necessary. He further advocated for clearer statutory

guidelines to assist the judiciary in standardizing rulings.

Obi (2021) took a critical approach by analyzing a range of Nigerian court decisions on medical

negligence and identifying a disturbing pattern of judicial hesitation in assigning liability to

medical practitioners. He pointed out that the evidentiary burden placed on claimants—most of

whom lack technical medical knowledge or the financial means to secure expert witnesses—

makes it exceptionally difficult to prove negligence. In response, Obi proposed a rethinking of

evidentiary standards in such cases, particularly advocating for a partial shift of the burden of

proof to the medical professional once a prima facie case of negligence has been established.
This, he argued, would encourage greater professional diligence and facilitate justice for victims

of medical malpractice.

Together, these contributions underscore the challenges and opportunities within Nigeria’s legal

system for ensuring accountability in the health sector. While there is a growing body of

knowledge and advocacy around tortious liability, structural reforms and public sensitization

remain crucial for the full realization of patient rights and legal redress.

2.3.2 International Literature

Comparative insights from other jurisdictions provide a useful framework for evaluating the

strengths and limitations of Nigeria’s approach to tortious liability in medical practice. Several

international studies and legal precedents highlight the role of tort law in enforcing professional

standards, compensating victims, and shaping medical conduct globally.

Studdert et al. (2006) conducted a seminal study in the United States examining the strengths

and flaws of the medical tort system. They found that although the American tort system is often

criticized for being adversarial and expensive, it nonetheless plays a crucial role in holding

medical professionals accountable for negligence and in compensating patients who suffer harm

due to substandard care. Importantly, their research revealed that not all instances of medical

negligence result in litigation—many victims either are unaware of their rights or choose not to

pursue legal redress. Conversely, not all legal claims are rooted in actual negligence, leading to

questions about efficiency and fairness. Despite these issues, Studdert and his colleagues

concluded that tort litigation serves as a necessary deterrent against malpractice and provides

valuable feedback that can inform quality improvement in healthcare.

In the United Kingdom, two landmark cases—Bolam v. Friern Hospital Management

Committee (1957) and Bolitho v. City and Hackney Health Authority (1997)—continue to

exert significant influence over how courts assess medical negligence. The Bolam test

established that a doctor is not negligent if their conduct is in line with a responsible body of

medical opinion. This introduced the idea that courts should defer to expert medical judgment,

provided it reflects a reasonable standard of care. However, the Bolitho decision refined this

standard by adding that expert opinions must also withstand logical scrutiny. In essence, while

courts respect medical expertise, they retain the authority to determine whether such opinions are

reasonable and well-founded. These principles have become a global reference point for

adjudicating medical negligence and are frequently cited in jurisdictions seeking to balance

professional discretion with legal accountability.

Olusegun and Omobolanle (2019) offered a unique cross-national perspective by examining the

understanding of medical liability among Nigerian doctors, some of whom had undergone part of

their training in jurisdictions with more robust malpractice frameworks. Their study found that a

significant number of practitioners were unaware of the full legal implications of their clinical

actions. Many participants expressed uncertainty about how tort law applies to their daily

practice and were unfamiliar with the legal consequences of failing to meet the standard of care.

The authors emphasized the need for integrating medical law and ethics into the core curriculum

of medical education in Nigeria. They argued that this would not only raise awareness among

practitioners but also promote a culture of accountability and patient-centered care, in line with

international best practices.

Collectively, these international perspectives highlight the value of a functioning tort system in

medical practice—not merely as a mechanism for compensation but also as a tool for

standardizing care and enforcing ethical conduct. They underscore the importance of judicial

balance between deferring to medical expertise and ensuring accountability, while also stressing

the need for legal literacy among healthcare providers. Lessons from the U.S., U.K., and

comparative studies such as Olusegun and Omobolanle’s can inform the ongoing development of

Nigeria’s medico-legal environment.

2.3.3 Institutional and Legal Framework

The institutional and legal framework for addressing medical negligence in Nigeria remains

fragmented and underdeveloped, lacking a comprehensive statutory regime specifically

dedicated to regulating tortious liability in the medical profession. Unlike jurisdictions with

codified malpractice laws, Nigeria primarily relies on inherited common law principles,

particularly those drawn from English legal precedents. This approach, while historically

significant, poses practical challenges in addressing the evolving dynamics of modern healthcare

and patient rights.

Legal claims for medical negligence in Nigeria are generally grounded in tort law, with

negligence being the most applicable tort. To succeed in a claim, a patient must prove the

existence of a duty of care, a breach of that duty, causation, and resultant damage. This common

law approach closely follows the reasoning established in landmark cases such as Donoghue v.

Stevenson and later applied in the Nigerian context through decisions like Okonkwo v. Ogbogu
(1996). However, the absence of a medical negligence statute means that standards and

procedures are not uniformly codified, leading to variability in court outcomes and procedural

inconsistencies.

The Medical and Dental Practitioners Act (Cap M8, LFN 2004) remains the primary

legislation governing the conduct of medical professionals in Nigeria. Under this Act, the

Medical and Dental Council of Nigeria (MDCN) is empowered to regulate the practice of

medicine and dentistry and to enforce professional discipline through its investigative panels and

tribunals. The Code of Medical Ethics in Nigeria, which complements this Act, outlines

acceptable standards of care and professional responsibility. However, enforcement of these

standards has often been criticized for being weak, slow, or susceptible to institutional inertia.

Disciplinary measures rarely translate into criminal or civil consequences, and findings by the

MDCN are not always transparent or timely.

Other relevant statutes include the Consumer Protection Council Act (1992), which grants

patients the right to safety, information, and redress. Though significant, the application of this

law in medical contexts is rare, and many patients remain unaware that substandard medical care

can constitute a consumer rights violation. Similarly, the National Health Act (2014) introduced

progressive provisions aimed at safeguarding patients’ rights, including informed consent and

access to emergency care. Despite its potential, the Act's implementation has been hampered by

low public awareness, lack of institutional capacity, and inadequate funding for enforcement

mechanisms.

Together, these legal and institutional instruments form a patchwork of protections that, while

valuable in theory, often fail to deliver meaningful remedies in practice. The disjointed nature of
Nigeria’s medico-legal framework has resulted in low litigation rates, underreporting of

malpractice, and minimal deterrence against negligence. Moreover, the heavy burden placed on

plaintiffs to prove negligence, especially in a system with limited forensic and evidentiary

infrastructure, further frustrates access to justice.

There is a growing consensus among scholars and legal practitioners that Nigeria needs a

consolidated legislative framework on medical negligence—one that harmonizes common law

principles with statutory obligations, enhances the powers of regulatory bodies, simplifies legal

processes, and actively educates both patients and medical practitioners on their rights and

responsibilities.